Unforeseen Side Effects: The Impact of Forcibly Medicating Criminal Defendants on Sixth Amendment Rights

Transcription

1 Valparaiso University Law Review Volume 41 Number 1 pp Fall 2006 Unforeseen Side Effects: The Impact of Forcibly Medicating Criminal Defendants on Sixth Amendment Rights Brenda A. Likavec Recommended Citation Brenda A. Likavec, Unforeseen Side Effects: The Impact of Forcibly Medicating Criminal Defendants on Sixth Amendment Rights, 41 Val. U. L. Rev. 455 (2006). Available at: This Notes is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu.

2 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi UNFORESEEN SIDE EFFECTS: THE IMPACT OF FORCIBLY MEDICATING CRIMINAL DEFENDANTS ON SIXTH AMENDMENT RIGHTS I. INTRODUCTION You are the foreperson on a jury in a brutal murder trial where a man has been accused of killing his wife and children. The defendant is raising the defense of insanity. The trial starts with the prosecution laying out the background of the case. Your eyes wander to the defendant. He stares into space and his tongue darts from between his lips every few seconds. He does not seem to be concerned about the trial going on around him, though his very life depends on its outcome. 1 As the trial progresses, the evidence becomes increasingly gruesome. Pictures of the crime scene, enlarged to poster size, are displayed. Several of the jurors become very emotional and physically ill at the sight of the pictures. You observe the defendant, calmly sipping on a glass of water. You find his lack of reaction very disturbing. The judge adjourns the trial for the day. In the elevator, you are with another juror. After a little small talk he suddenly says, Did you notice how the defendant just sat there and didn t seem to bat an eye when those pictures were up there? I mean, he acted like he was in another world! You nod and then the door opens. You go home and have a restless night. The next day, the prosecution rests and the defense opens its case with a doctor, a psychiatrist. The doctor testifies to the mental state of the defendant at the time of the crime, indicating that the defendant has recently been diagnosed with paranoid schizophrenia. He describes the symptoms, which do not comport with the current behavior of the defendant. The defense then turns the questioning to the current condition of the defendant. 1 All events described in this hypothetical are fictional. However, commonly used antipsychotic medications such as Mellaril and Thorazine, the least potent of the antipsychotic medications, cause side effects such as agitation, disorientation, sedation, muscle spasms, drooling, and various other neurological and non-neurological side effects. William P. Ziegelmueller, Comment, Sixth Amendment Due Process on Drugs: The Implications of Forcibly Medicating Pre-Trial Detainees with Antipsychotic Drugs: Riggins v. Nevada, 112 S. Ct (1992), 83 J. CRIM. L. & CRIMINOLOGY 836, (1993). 455 Produced by The Berkeley Electronic Press, 2006

3 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 The defendant s doctor reveals that the defendant is now heavily medicated with a powerful psychotropic drug. The doctor lists the very behavior you have been witnessing as side effects. After extensive testimony, you begin to see a picture of the defendant s mental state. You realize that he is perhaps not in full control of his faculties. The time for deliberations arrives. Debate is heated from the beginning. I don t think I can convict him, begins one juror. That doctor said he acts that way because he is medicated. I don t even know how they could put him on trial he obviously isn t with it. You can t try someone unless they are competent. It s in the Constitution. If there was something wrong with him, he would be in a mental hospital! exclaimed the juror you met in the elevator. When this trial first started, I was disturbed by the defendant s lack of emotion. Those side effects are just an excuse. If someone shows you a picture of your dead wife and kids slashed to bits, you are going to react, no matter how medicated you are. People start to nod in agreement. After more debate, you call for a vote. The vote is unanimous for conviction. Approximately sixteen percent of inmates in state prisons are identified as mentally ill. 2 In fact, an estimated 280,000 people currently incarcerated in prison suffer from mental illness. 3 In the past decade, many cases have presented the issue of whether the government can forcibly medicate a person with antipsychotic medications for the purpose of rendering him competent to stand a criminal trial. 4 As a result, issues have arisen concerning the 2 Bureau of Justice Statistics, Mental Health and Treatment of Inmates and Probationers (1999), available at Additionally, approximately 7% of federal prisoners, 16% of those in jail, and 16% of probationers are also identified as mentally ill. Id. Inmates identified as mentally ill in state prisons, are more likely to be incarcerated for violent offenses than those without a mental illness. Id. Nearly 30% of mentally ill persons incarcerated for violent crimes are recidivists. Id. at 5. Further, mentally ill inmates present much more of a disciplinary problem while incarcerated than those without mental illness. Id. at 9. 3 Id. at 3. 4 See Sell v. United States, 539 U.S. 166 (2003) (articulating the standard for determining when forcible medication of pre-trial detainees is permissible); Riggins v. Nevada, 504 U.S. 127 (1992) (reversing a conviction of a defendant who was forcibly medicated with

4 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 457 constitutional rights of these mentally ill detainees, and whether forcible medication is an acceptable constitutional remedy to the problem presented. 5 The current standard articulated by the United States Supreme Court is not working and results in the violation of the detainee s Sixth Amendment right to a fair trial. Part II of this Note provides the legal background to the issue of forcible medication. 6 Part III analyzes the application of the standards set forth by the Supreme Court in regards to forcible medication. 7 Finally, Part IV proposes two new means to lessen the negative impact on the Sixth Amendment rights of the criminal defendant. 8 II. BACKGROUND Forcible medication of pre-trial detainees, as well as incarcerated and mentally ill individuals, has been an issue in American jurisprudence for several decades. 9 Part II.A discusses the medications often at issue in antipsychotic medications throughout his trial); United States v. Bradley, 417 F.3d 1107 (10th Cir. 2005) (permitting forcible medication of a pre-trial detainee to render him competent to stand trial); United States v. Evans, 404 F.3d 227 (10th Cir. 2005) (denying the government s request to forcibly medicate a pre-trial detainee so that he was competent to stand trial); United States v. Gomes, 387 F.3d 157 (2d Cir. 2004) (affirming a trial court decision to forcibly medicate a pre-trial detainee so that he would be competent to stand trial); United States v. Morgan, 193 F.3d 252 (4th Cir. 1999) (reversing an order to forcibly medicate a pre-trial detainee). See generally Hollybeth G. Hakes, Annotation, Forcible Administration of Antipsychotic Medication to Pre-trial Detainees Federal Cases, 188 A.L.R. FED. 285 (2003) (listing cases where forcible medication of pre-trial detainees was a significant factor). 5 See generally Debra A. Breneman, Recent Development: Forcible Antipsychotic Medication and the Unfortunate Side Effects of Sell v. United States, 539 U.S. 166, 123 S. Ct (2003), 27 HARV. J.L. & PUB. POL Y 965 (2004) (discussing the impact of Sell on Sixth Amendment rights); Aaron R. Dias, Just Say Yes: Sell v. United States and Inadequate Limitations of the Forced Medication of Defendants in Order to Render Competence for Trial, 55 S.C. L. REV. 517 (2004) (explaining the impact on First Amendment rights in light of forcible medication); Bruce J. Winick, The Right To Refuse Mental Health Treatment: A First Amendment Perspective, 44 U. MIAMI L. REV. 1 (1989) (providing a comprehensive discussion of forcible mental health treatment and the freedom of speech); Scott Ditfurth, Note, When Can the Government Force Someone To Be Competent: Sell v. United States, 25 WHITTIER L. REV. 667 (2004) (criticizing the forcible medication of pre-trial detainees for the purpose of establishing competence for trial). 6 See infra Part II. 7 See infra Part III. 8 See infra Part IV. 9 See Julie D. Cantor, M.D., Of Pills and Needles: Involuntarily Medicating the Psychotic Inmate When Execution Looms, 2 IND. HEALTH L. REV. 119 (2005). Cantor discusses the history of mental illness and the legal system. Id. at Produced by The Berkeley Electronic Press, 2006

5 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 cases concerning forcible medication. 10 Part II.B explains the rights of individuals regarding forcible medical treatment, including private citizens, convicted inmates, and pre-trial detainees. 11 Then, Part II.C discusses the rights implicated by forcibly medicating various persons with psychotropic medications. 12 Further, Part II.D discusses the evolving standards as declared by the Supreme Court regarding the issue of forcibly medicating pre-trial detainees with psychotropic medications. 13 Part II.E presents the application of the standards to various cases. 14 A. Antipsychotic or Psychotropic Medications Many mental illnesses are treated with medications termed antipsychotic or psychotropic and the Supreme Court has distinguished the forcible use of these medications from other bodily intrusions to which pretrial defendants may be subjected. 15 For example, while a blood test is considered a routine procedure with little to no lasting side effects, the side effects of antipsychotic medications are plentiful and much more severe. 16 Some side effects that can result from conventional antipsychotic medications include nervous ticks, spasms, restlessness, and a condition called tardive dyskinesia. 17 Studies show 10 See infra Part II.A. 11 See infra Part II.B. 12 See infra Part II.C. 13 See infra Part II.D. 14 See infra Part II.E. 15 Schmerber v. California, 384 U.S. 757, 772 (1966). The Court in Schmerber held that minor intrusions into a person s body, such as a blood test, are not forbidden by the Constitution under extremely limited circumstances. Id. See also John R. Hayes, Sell v. United States: Is Competency Enough to Forcibly Medicate a Criminal Defendant?, 94 J. CRIM. L. & CRIMINOLOGY 657, 658 (2004). 16 See Elizabeth G. Schultz, Sell-ing Your Soul to the Courts: Forced Medication To Achieve Trial Competency in the Wake of Sell v. United States, 38 AKRON L. REV. 503, 540 (2005) (discussing the different side effects produced by typical anti-psychotic medications); see also Hayes, supra note 15, at (explaining the different side effect possibilities and probabilities resulting from the administration of antipsychotic medication); Rebekah W. Page, Comment, Forcible Medication and the Fourth Amendment: A New Framework for Protecting Nondangerous Mentally Ill Pretrial Detainees Against Unreasonable Governmental Intrusions into the Body, 79 TUL. L. REV. 1065, 1069 (2005) (discussing cognitive dampening, a side effect that impairs memory, reasoning, and functioning in complex situations). 17 Hayes, supra note 15, at 658. The Supreme Court has even recognized that 10-25% of people taking anti-psychotic drugs exhibit symptoms of tardive dyskinesia. Washington v. Harper, 494 U.S. 210, 230 (1990). Involuntary movements of muscles, particularly in the facial region, characterize tardive dyskinesia. Id. at 230. Tardive dyskinesia can also result in involuntary sucking movements, grimacing, and involuntary jerking in the limbs. T. Howard Stone, Therapeutic Implications of Incarceration for Persons with Severe Mental

6 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 459 that these side effects occur in up to seventy-five percent of people who take these medications and are potentially irreversible. 18 In addition to these side effects, other possible reactions include sedation, decreased ability to concentrate, dry mouth, blurred vision, weakness, and dizziness. 19 Further, there are some newer, atypical medications used to treat psychotic disorders that have reduced some of the traditional side effects of antipsychotic medications, though they present problems of their own. 20 Despite side effects that may manifest as a result of antipsychotic medications, these drugs can also produce beneficial effects. 21 For Disorders: Searching for Rational Health Policy, 24 AM. J. CRIM. L. 283, 305 (1997). About 10% of people who suffer from this side effect experience it in its severe form. Harper, 494 U.S. at Hayes, supra note 15, at 658. Additionally, the side effects may also be subjectively quite stressful... incompatible with clinical improvement and with a useful life outside the hospital, and can be more unbearable than the symptoms for which the patient was originally treated. Brief for American Psychological Association as Amicus Curiae, Sell v. United States, 539 U.S. 166 (2003) (No ) [hereinafter APA Brief]. 19 Hayes, supra note 15, at 658. Further, conventional psychotropic medications can cause Neuroleptic Malignant Syndrome, a disease that can lead to respiratory and kidney failure if left untreated. APA Brief, supra note 18, at 3. Further, another side effect is akathisia, an emotional condition that causes extreme irritability, a constant desire to be in motion, and an adverse effect on the thinking process. Dennis E. Cichon, The Right to Just Say No : A History and Analysis of the Right To Refuse Antipsychotic Drugs, 53 LA. L. REV. 283, 322 (1992). In addition, another possible side effect is akinesia, which can cause lethargy and cause the patient to feel like he is dead inside. Page, supra note 16, at On the opposite end of the spectrum, another possible side effect is strong agitation where the patient feels revved up and unable to remain still. Id. at Hayes, supra note 15, at Another serious side effect that can manifest due to medication with atypical psychotropics is diabetes that has developed in patients after one dosage of the medication. Page, supra note 16, at Additional side effects that manifest due to these atypical antipsychotic medications include cataracts, decrease in white blood cell counts, sedation, seizures, involuntary muscle spasms in the facial region, hypotension, and weight gain. Hayes, supra note 15, at 659. Additionally, since these atypical medications have been in use for a relatively short period of time, it is possible that long-term side effects may exist but have not yet been discovered. Id. Specifically, the medication Clozapine, used principally in the treatment of schizophrenia, can result in agranulocytosis, a serious condition that causes a dramatic reduction in the amount of white blood cells that can, if not treated quickly, result in death. Robert N. Swidler, Medical Innovations and Ethics: A State Government Perspective, 57 ALB. L. REV. 655, 657 n.44 (1994). 21 Ziegelmueller, supra note 1, at 837. However, it is also suggested that the often cited benefits of antipsychotic medications are actually overstated. Laura Ryan, Comment: Washington State Prison Procedure for the Forcible Administration of Antipsychotic Medication to Prison Inmates Does Not Violate Due Process, Washington v. Harper, 110 S. Ct (1990), 59 U. CIN. L. REV. 1373, 1405 (1991). However, some scholars believe that it is the side effects that are overstated as opposed to the benefits. John Baker, Tardive Dyskinesia: Reducing Produced by The Berkeley Electronic Press, 2006

7 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 example, antipsychotic drugs are very effective in treating symptoms of psychoses by clearing delusions that may cause irrational behavior and interfere with regular courses of treatment. 22 Additionally, antipsychotic drugs allow for more humane treatment of those with delusional disorders. 23 Regardless of the benefits and detriments, it still remains that the very purpose of antipsychotic drugs is to alter the chemistry of the brain to produce beneficial changes in the cognitive process. 24 While there may be some benefit to the administration of these antipsychotic medicines, the medicines often produce serious, even fatal, side effects. 25 As a result, the use of these medications presents constitutional difficulties when considering the rights implicated by the practice of forcibly medicating individuals. 26 B. Forcible Medical Treatment in General Generally, individuals possess certain rights regarding their medical care. 27 These rights are balanced against relevant government interests, depending on whether the person is a private citizen, a convicted prisoner, or pre-trial detainee. 28 However, pre-trial detainees are Medical Malpractice Exposure Through a Risk-Benefit Analysis, 1 DEPAUL HEALTH CARE L. 799, 801 (1997). 22 Ziegelmueller, supra note 1, at 837. Specifically, administration of Clozapine, a drug used for treating schizophrenia, has resulted in substantial improvements in patients who have not reacted to other antipsychotic medications by reducing hallucinations, disjointed thinking, and bizarre behavior. Swidler, supra note 20, at 667. Some patients have made such remarkable recoveries while using Clozapine that they are now able to live independently. Id. at 667 n.41. Additionally, Clozapine has reduced symptoms of tardive dyskinesia in patients who were previously administered conventional antipsychotic medications. Id. at Ziegelmueller, supra note 1, at 837. Antipsychotic medications, by relieving the symptoms of psychoses, allow a patient to be free of restraints and makes it possible for the patient to eventually function in society. Id. at Ziegelmueller also notes that the benefits and side effects vary dramatically depending on the dosage of the medication. Id. 24 Washington v. Harper, 494 U.S. 210, 229 (1990) (citing Harper v. Washington, 759 P.2d 358, 361 n.3 (Wash. 1988)). 25 Id. at 230. The Court further discussed other side effects caused by antipsychotic drugs in general. Id. at 229. For example, these drugs can produce an effect called acute dystonia which causes severe involuntary spasms of the upper body, throat, tongue, or eyes, and causes the necessity to introduce another drug to combat these effects. Id. at See infra Part II.C. 27 See infra Part II.B See infra Part II.B.2.

8 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 461 considered under different standards than convicted prisoners and private detainees when the issue of forcible medication arises Rights of Patients The Supreme Court has held that people have the right to decide what types of medical treatment they wish to receive and the ability to refuse such recommended treatment. 30 In Cruzan v. Missouri Department of Health, 31 the Court held that competent people generally have the right to exact control over their own bodies, and one who ignores those wishes can be held liable. 32 While Cruzan stands for the proposition that a competent person generally has the right to refuse medical treatment, an incompetent person does not enjoy the same right. 33 Furthermore, the 29 See infra Part II.B Cruzan v. Mo. Dep t of Health, 497 U.S. 261, 269 (1990). In Cruzan, Nancy Cruzan was in an automobile accident and sustained injuries leaving her incompetent. Id. at 265. Her parents, serving as her guardians, after learning that their daughter would likely never regain consciousness or cognitive functions, sought to have the feeding and hydration tubes removed from their daughter. Id. The Supreme Court of Missouri declined to allow the withdrawal, holding that because there was no clear and convincing evidence that Nancy Cruzan would have requested that the feeding and hydration tubes be withdrawn, her parents had no authority to carry out their request. Id U.S. 261 (1990). 32 Id. at 269 (quoting Schloendorff v. Soc y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914)). Justice Cardozo stated, Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient s consent commits an assault, for which he is liable in damages. Id. 33 Id. (citing Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The Court stated that [n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Id. The focus of Cruzan was whether it was constitutionally permissible for the State of Missouri to require clear and convincing evidence that an incompetent person would have desired the cessation of life-sustaining treatment. Id. The Court held that while a competent person generally possesses the right to refuse life-sustaining medical treatment, it does not follow that an incompetent person should have the same right as one who is competent to make an informed and voluntary choice to exercise the right. Id. at Courts have, however, found that involuntarily committed mental patients have the right to refuse anti-psychotic drugs. Rennie v. Klein, 653 F.2d 836, 840 (3d Cir. 1981). In Rennie, the petitioner was a frequent patient at a New Jersey state-run psychiatric hospital. Id. at 838. He was forcibly medicated with anti-psychotic drugs and filed suit alleging that several specific rights had been violated by the forced medication: the right to refuse treatment in non-emergency situations; the right to receive treatment; the right of access to counsel; and the right to be free from abuse while in state custody. Id. at 839. The lower court found that involuntarily as well as voluntarily committed individuals have a right to refuse anti-psychotic medications. Id. at 840. See also Rogers v. Okin, 478 F. Supp (D. Mass. 1979). In Okin, the court prevented the forcible medication of antipsychotic Produced by The Berkeley Electronic Press, 2006

9 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 Court in Cruzan acknowledged that the idea of bodily integrity is the reason that informed consent is generally necessary before medical treatment commences. 34 The Court then explained that a logical companion to the idea of informed consent is the right to refuse treatment. 35 Courts have also considered the rights of those in a mental institution to refuse treatment, initially granting institutional authorities the right to supervise and regulate the treatment regimen for those committed involuntarily. 36 However, a federal district court has held that patients who have been involuntarily committed to mental institutions also enjoy the right to refuse medication. 37 In cases considering forcible medication in mental facilities, antipsychotic or psychotropic drugs are most often at issue. 38 The nature of the antipsychotic drugs themselves is often cited as the objection to accepting the drugs voluntarily. 39 Nonetheless, courts have recognized medications to involuntarily committed individuals holding that, Whatever powers the Constitution has granted our government, involuntary mind control is not one of them, absent extraordinary circumstances. Id. at Cruzan, 497 U.S. at 269; see also G. Steven Neely, The Constitutional Right to Suicide, the Quality of Life, and the Slippery Slope : An Explicit Reply to Lingering Concerns, 28 AKRON L. REV. 53, 54 (1994) (discussing the long-standing recognition by the common law of the right for a person to be free from non-consensual bodily intrusions and the extension of that recognition to the refusal of life-saving treatment). 35 Cruzan, 497 U.S. at 270. Informed consent encompasses the right to choose, accept, or refuse medical treatment. Cantor, supra note 9, at 127. However, the rights of bodily integrity and personal autonomy that form the basis of the informed consent doctrine are not absolute. Id. at A few limited situations have been identified where informed consent is not required, such as in emergency situations where a patient may be unconscious or delirious and a delay in treatment would jeopardize her health. Id. at 128. When a doctor decides that certain information may cause severe distress to a patient, she may also withhold decision-making information. Id. 36 Schultz, supra note 16, at 511 n.48. However, the practice of allowing institutional authorities to have discretion over the treatment regimen began to erode in the midtwentieth century when mental health issues became more prevalent in the United States. Jessica Litman, Note, A Common Law Remedy for Forcible Medication of the Institutionalized Mentally Ill, 82 COLUM. L. REV. 1720, 1725 (1982). Issues such as involuntary commitment, patient rights, and institutional conditions were litigated. Schultz, supra note 16, at 511 n See Okin, 478 F. Supp Cichon, supra note 19, at 286 n.14. The most common form of treatment in mental facilities is the administration of antipsychotic medications, both for patients diagnosed as schizophrenics and those who are not. Litman, supra note 36, at William M. Brooks, Reevaluating Substantive Due Process as a Source of Protection for Psychiatric Patients To Refuse Drugs, 31 IND. L. REV. 937, 938 (1998). [B]oth the legal and medical professions recognize that psychotropic medication in general, and antipsychotic

10 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 463 the rights of both those who are incompetent due to mental illness and those incapacitated by physical injuries to refuse treatment Rights of Patients in Light of Government Interests While the Cruzan decision discussed the right to refuse medical treatment, the Court s primary focus was on the right to refuse life sustaining treatment. 41 However, even in other contexts, courts have found that competent persons have the right to refuse medical treatment despite the government s interest in the treatment taking place. 42 In Winston v. Lee, 43 the Supreme Court held that despite the government s interest in prosecuting an alleged offender, the government could not compel the suspect to undergo a surgical procedure to remove a bullet from his chest that could provide exculpatory evidence. 44 The Court distinguished Winston from Schmerber medication in particular, often produce side effects ranging in nature from short-term and merely discomforting to permanent and life-threatening. Id. 40 See supra note 33 and accompanying text (noting that the Court has recognized the right to refuse treatment for those incapacitated by physical injury, such as in Cruzan, as well as those who are incapacitated by a mental impairment, as in both Rennie and Okin). 41 Cruzan v. Mo. Dep t of Health, 287 U.S. 261, 279 (1990). The Court found that Missouri has an important interest in preserving the life of its citizens. Id. at 280. The Court further held that since the choice between life and death is such a personal and final decision, Missouri has an interest in safeguarding the personal nature of this choice by requiring the heightened evidentiary standard of clear and convincing evidence when a personal representative or guardian seeks to render that decision over the incompetent person. Id. at See Winston v. Lee, 470 U.S. 753 (1985). The Court balanced the government s interest in obtaining evidence in a criminal investigation with the right of an individual to be free from bodily intrusions. Id. at 766. See infra notes 43-44, U.S. 753 (1985). In Winston, Lee was charged with attempted robbery and other related charges resulting from an alleged attempt to rob a store where the shopkeeper was wounded during the robbery. Id. at 755. During the altercation, the shopkeeper, Watkinson, fired a shot at one of the perpetrators who retreated from the scene with an apparent wound in his left side. Id. Police later responded to a call from Lee who was wounded by gunshot on the left side of his chest. Id. at 756. Lee claimed that persons attempting to rob him shot him; however, while in the emergency room. Watkinson identified Lee as the man who attempted to rob his store. Id. After an investigation, the police determined that Lee was the person who attempted to rob Watkinson and he was subsequently charged. Id. 44 Id. at 755. The bullet that the government wanted removed from Lee s chest was approximately one inch beneath the surface of the skin and would require general anesthesia, despite earlier indications that the wound was more superficial. Id. at 757. An earlier motion to compel the surgery was granted by a lower court judge because the surgeon testified that only a local anesthetic would be necessary and the dangers would be minimal. Id. at 756. Produced by The Berkeley Electronic Press, 2006

11 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 v. California, 45 in which the Court allowed an unwilling person under suspicion of drunk driving to undergo a blood test. 46 In contrast, the Court in Winston found that the surgical procedure that the defendant would have to undergo to extract the bullet would be a substantial intrusion into his person and would constitute an unreasonable search and seizure under the Fourth Amendment. 47 As a result, the Court concluded that surgical intrusions implicate privacy expectations that may be considered unreasonable, despite producing evidence of a crime. 48 Other important government interests are implicated regarding issues of forcible medication, such as maintaining a secure and orderly prison environment. 49 In Washington v. Harper, 50 the Supreme Court found that the proper standard for determining if a prison regulation infringes on the constitutional rights of an inmate is whether the regulation is reasonably related to legitimate penological interests, even if the alleged infringed-upon right is fundamental and would ordinarily require a higher standard of review. 51 The Court reviewed the U.S. 757 (1966) (holding that a State may, over the suspect s protest, have a physician extract blood from a person suspected of drunken driving without violation of the suspect s rights secured by the Fourth Amendment not to be subjected to unreasonable searches and seizures.). 46 Id. at 772 (finding that minor intrusions into a person s body under extremely limited conditions are not forbidden by the Constitution). In Schmerber, the petitioner and his companion, after leaving a bowling alley where they had been drinking, skidded across the road and hit a tree shortly after midnight. Id. at 759 n.2. The petitioner was then taken to the hospital for treatment when an officer directed the blood test so that the petitioner s blood alcohol level could be tested. Id. at Winston, 470 U.S. at 767. The Court considered the extent that the procedure could threaten Lee s health and safety. Id. at 761. The Court contrasted the routine blood test that was in dispute in Schmerber to the procedure that Lee would need to undergo so that the State could retrieve the bullet. Id. at 761, 764. Lee s procedure would entail general anesthesia, extensive probing of his muscle tissue that carried the concomitant risks of injury to the muscle as well as injury to the nerves, blood vessels and other tissue in the chest and pleural cavity. Id. at 764 (quoting Lee v. Winston, 717 F.2d 888, 900 (4th Cir. 1984)). 48 Id. at 759. A compelled surgical intrusion into an individual s body for evidence... implicates expectations of privacy and security of such magnitude that the intrusion may be unreasonable even if likely to produce evidence of a crime. Id. 49 Washington v. Harper, 494 U.S. 210, 213 (1990); see also O Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (finding that prison regulations... are judged under a reasonableness test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights ) U.S Id. at 223. In Harper, Walter Harper was incarcerated for robbery in 1976 and was housed for the greater part of in the mental health ward at Washington State

12 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 465 policy of the state with regard to forcibly medicating prisoners with antipsychotic medication and found that the safeguards in place and the important penological interests served allowed for the forcible medication of that prisoner Pre-trial Detainees While courts have articulated certain standards for forcibly medicating convicted prisoners, courts have articulated different standards for those detained pending trial. 53 In Riggins v. Nevada, 54 the Penitentiary. Id. at 213. During this time, he consented to the administration of antipsychotic drugs. Id. He was paroled in 1980 and, after violating parole by assaulting two nurses at a hospital, he was returned to a Special Offender Center that was established to treat and diagnose felons with serious mental disorders. Id. After first consenting to being medicated, he later refused to take anti-psychotic medications. Id. His treating physician then sought to forcibly medicate Harper pursuant to the Special Offender Center Policy. Id. 52 Id. at 227. The Court qualified its ruling by determining that the forcible medication of the prisoner was constitutionally permissible only when the inmate was dangerous to himself or others and the treatment is in the inmate s medical interest. Id. Furthermore, the Court noted that forcibly medicating this prisoner was consistent with the Due Process requirements of the Fourteenth Amendment, because it was reasonably related to ensuring that the personnel and staff of the prison facility remained safe and secure and that the regulations in place were a rational method by which to achieve the goal. Id. The Court further explored the procedural requirements that are necessary to compel medication and found that the procedures that the Special Offender Center had in place were sufficient. Id. at 228. The procedures in place included a hearing that allowed for the medication only if the prisoner was determined to suffer from a mental disorder and posed a danger to the safety of himself or others, administration only by a psychiatrist, notice requirements, and periodic review. Id. at See Riggins v. Nevada, 504 U.S. 127 (1992) (holding that Nevada could have satisfied Due Process requirements had it made a finding that treatment with an anti-psychotic medication of the pre-trial detainee was medically appropriate and essential when other less intrusive alternatives were explored or by establishing that Nevada could not adjudicate the defendant by using any other less intrusive means); see also Bell v. Wolfish, 441 U.S. 520, 545 (1979) ( [P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners. ) U.S. 127 (1992). In Riggins, David Riggins challenged his conviction for murder and robbery because he was forcibly medicated with the anti-psychotic drug Mellaril during his trial. Id. at 129. Riggins was convicted of stabbing Paul Wade to death in his Las Vegas apartment. Id. A few days after his arrest, he conveyed to the county s psychiatrist that he heard voices in his head and had some difficulty sleeping. Id. His psychiatrist prescribed Mellaril to Riggins in increasing doses as he continued to complain of his symptoms. Id. A court found Riggins competent to stand trial while under the effects of the medication. Id. at 130. Riggins then moved for the suspension of the medication while he was on trial arguing that the effects of the drugs compromised his right to a fair trial. Id. With no rationale provided, the district court denied Riggins s Produced by The Berkeley Electronic Press, 2006

13 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 Supreme Court held that the Fourteenth Amendment provides at least as much protection to a pre-trial detainee as to one already convicted of a crime. 55 The Court alluded to methods by which a state could justify the forcible medication of a pre-trial detainee, such as the state proffering the justification that adjudication could not occur without the medication. 56 Additionally, the Court asserted that any trial prejudice that may occur because of the medication may be outweighed by the need to accomplish an essential state policy. 57 Further, the government may propose other justifications, such as dangerousness to oneself or others, for forcibly medicating a pre-trial detainee with antipsychotic medications. 58 In Sell v. United States, 59 the motion, thereby compelling him to continue taking the medication. Id. at 131. Riggins was convicted of murder and sentenced to death. Id. 55 Id. at 135. The Court cited to its holding in Harper that it is impermissible to forcibly medicate a prisoner with an antipsychotic medication unless there is an important justification and a finding that the forced medication is medically appropriate. Id. Additionally, because a pre-trial detainee awaits trial and has not yet been convicted of any crime, the pre-trial detainee has a greater interest at stake than a person who has already been convicted because the detainee will be adversely affected by any act that could influence the fairness of a trial. Ziegelmueller, supra note 1, at Riggins, 504 U.S. at 135. The Court then cited to Justice Brennan s concurring opinion in Illinois v. Allen, stating that Constitutional power to bring an accused to trial is fundamental to a scheme of ordered liberty and prerequisite to social justice and peace. Id. at 136 (citing Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring)). 57 Id. at 135 ( Nevada certainly would have satisfied due process if the prosecution had demonstrated, and the District Court had found, that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins own safety or the safety of others. ). However, Justice Kennedy pointed out in his concurrence that absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial. Id. at 139 (Kennedy, J., concurring). Justice Kennedy further explained that he doubted that in most cases a proper showing could be made to justify forcibly medicating a pre-trial detainee with antipsychotic medication under the present understanding of the drugs themselves. Id. 58 See Sell v. United States, 539 U.S. 166, 182 (2003). For example, the Court indicated that dangerousness is an appropriate factor to consider in determining if forcible medication is appropriate. Id. The Court also suggested that civil commitment may provide another alternative. Id. 59 Id. In Sell, Dr. Charles Sell, a dentist with a long history of mental illness, was charged in 1997 with mail fraud, Medicaid fraud, and money laundering. Id. at After a psychiatric evaluation, Sell was found competent at the time with the Federal Magistrate, but the evaluation noted that Sell might suffer a psychotic break in the future. Id. at 170. While Sell was free on bail, the Government alleged that he attempted to intimidate a witness. Id. At the bail revocation hearing, Sell s mental condition had indeed worsened and was manifested by such behavior as spitting in the judge s face, using racial epithets, and personal insults. Id. Sell s bail was revoked and he was subsequently found

14 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 467 Supreme Court explained that if forced medication is necessary for purposes related to the individual s dangerousness or a possible risk to her own health, then the forcible medication can be justified without relying on the trial competence justification. 60 The Court explained that the facts of each individual case must be examined in evaluating the government s interest in forcibly medicating a pre-trial detainee as special circumstances may lessen the importance of the government s interest. 61 C. Rights Implicated by Forcibly Medicating a Pre-Trial Detainee Because courts have distinguished the standards for forcible medication of pretrial detainees from convicted prisoners, it follows that different rights are implicated as well. 62 Though the Sixth Amendment is the focus of this Note, many other rights are implicated as well. 63 incompetent to stand trial. Id. at 171. He was hospitalized for evaluation, where it was recommended that Sell take antipsychotic medications, which he refused. Id. 60 Id. at 182. If a court authorizes medication on these alternative grounds, the need to consider authorization on trial competence grounds will likely disappear. Id. at Id. at 180. For example, the Court cited to how a defendant s refusal to voluntarily take antipsychotic medications may result in lengthy commitment to a mental health facility, thereby diminishing the risk that an alleged criminal will go free without punishment. Id. The Court also pointed out that while the government has an interest in prosecuting defendants, it also has an interest in assuring that the defendant receives a fair trial. Id. 62 See supra Part II.B. 63 The scope of rights that are affected by forcible medication is broad. See generally Aaron M. Nance, Comment, Balking at Buying What the Eighth Circuit Is Sell-Ing: United States v. Sell and the Involuntary Medication of Incompetent, Non-Dangerous, Pretrial Detainees Cloaked with the Presumption of Innocence, 71 UMKC L. REV. 685, 687 (2003). The First Amendment is implicated as the side effects of the medication can hamper the communicative abilities of the medicated individual. See Washington v. Harper, 494 U.S. 210, 229 (1990) (antipsychotic drugs have the capacity to severely and even permanently affect an individual s ability to think and communicate). For an in-depth discussion of forcible medication and the First Amendment, see Winick, supra note 5. Constitutional scholars believe that by seeking to alter the way a person thinks, the government is seeking to control the person s thought process and therefore communicative abilities when the government forces doses of antipsychotic medications on a person. Schultz, supra note 16, at 533; see also Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984) (holding that forcibly medicating a pre-trial detainee would affect the detainee s ability to produce ideas and, therefore, affect the detainee s freedom of speech). Additionally, the Fourth Amendment s prohibition against unreasonable searches and seizures is implicated by forcible medication because it is more than a minor intrusion into the body. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S 388, 392 (1971) (stating that the Fourth Amendment guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority ); Schmerber v. California, 384 U.S. 757, 772 (1966) (holding that the Constitution does not forbid the Produced by The Berkeley Electronic Press, 2006

15 Valparaiso University Law Review, Vol. 41, No. 1 [2006], Art VALPARAISO UNIVERSITY LAW REVIEW [Vol. 41 States minor intrusions into an individual s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions ). In addition to the First and Fourth Amendment implications, the Court has explicitly held that the substantive due process rights under the Fifth Amendment are also implicated by forcible medication. Riggins v. Nevada, 504 U.S. 127, 137 (1992). The Court has found a liberty interest in declining antipsychotic medication due to the side effects and function. Benson v. Terhune, 304 F.3d 874 (9th Cir. 2002) (stating that the Due Process Clause of the Fifth Amendment substantively protects a person s right to be free from unjustified intrusions into the body, to refuse medical treatment, and to be informed so as to be able to sufficiently make a decision regarding any bodily intrusion). Additionally, procedural due process under the Fifth Amendment is also implicated by forcible medication. Hakes, supra note 4, at 290. Concerns important as to whether procedural due process has been fulfilled include administrative hearings, notice, and an articulation of specific reasons for medicating a detainee. United States v. Charters, 863 F.2d 302, 305 (4th Cir. 1988). Four specific factors crucial in determining whether due process has been satisfied are: (1) the private individual s interests; (2) the government s interests; (3) the value of the suggested procedural requirements; and (4) the risk of erroneous deprivation of rights to the individual present in the current procedures. United States v. Brandon, 158 F.3d 947, 953 (6th Cir. 1998). In Brandon, the Sixth Circuit relied on adherence to the extensive safeguards provided under 28 C.F.R Id. at 953. The code requires: (1) 24 hour advanced written notice of the time, date, place and purpose of the hearing, with the reasons for the proposed medication; (2) Notice of the right to appear at the hearing, present evidence, and be represented by a staff member; (3) The hearing is to be conducted by a psychiatrist not currently involved in the diagnosis or treatment of the individual; (4) The medical professional treating or evaluating the individual must attend the hearing and present clinical data and background information in support of the need for medication; (5) The psychiatrist conducting the hearing will determine and prepare a written report regarding whether such medication is necessary in the effort of restoring the individual s competence, or because the individual is dangerous, gravely disabled, or unable to function in his housing facility; (6) Inmates are given a copy of the report and notified of their right to appeal the determination to the administrator of the mental health division in the institution within 24 hours of the decision; (7) No medication will be administered until resolution of the appeal; (8) A non-attending psychiatrist must monitor the individual s treatment at least once every 30 days and document the same; and (9) Only in emergency situations may an individual be medicated prior to a hearing; or while an appeal is pending. During an emergency, an individual may be forcibly medicated only when doing so is an appropriate treatment and no less restrictive means are available. 28 C.F.R (1998); see also Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (articulating the procedural safeguards and interests that must be considered). Finally, another right, considered fundamental though not expressly articulated in the Constitution, implicated by forcible medication is the right to privacy. Schultz, supra note 16, at 534 n.170. The

16 Likavec: Unforeseen Side Effects: The Impact of Forcibly Medicating Crimi 2006] Forcibly Medicating Criminal Defendants 469 Accordingly, this section discusses the impact of forcible medication on Sixth Amendment rights. 64 The Sixth Amendment, which guarantees the right to a fair trial, is implicated when defendants are forcibly medicated. 65 In fact, the Supreme Court has discussed how the forcible medication of a pre-trial detainee can violate a detainee s right to a fair trial under the Sixth Amendment. 66 In his concurrence in Riggins v. United States, Justice Kennedy compared the administration of these drugs to concerns of the prosecution manipulating evidence. 67 The possibility that the side effects of the medication may alter the demeanor of the defendant was troublesome to the Court. 68 The drugs are thought to prejudice the defendant in two main ways: (1) by altering his or her demeanor so that Supreme Court has held that a person, under the right to privacy, has a protected liberty interest in refusing antipsychotic medication. Washington v. Harper, 594 U.S. 210, 229 (1990). 64 See infra Part II.C. 65 U.S. CONST. amend. VI. The Sixth Amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Id. 66 See Riggins v. Nevada, 504 U.S. 127 (1992) (ruling that it was error to order the detainee to be administered antipsychotic drugs during the course of the trial). [T]he concerns are much the same as if it were alleged that the prosecution had manipulated material evidence. Id. at 139 (Kennedy, J., concurring). 67 Id. at 139. Justice Kennedy further explained that in order for these sorts of forcible medications to meet the requirements of the Sixth Amendment, the government must show that there is no significant risk that the medication will impair or alter in any material way the defendant s capacity or willingness to react to the testimony at trial or to assist his counsel. Id. at Id. at 142. Justice Kennedy discussed extensively how the antipsychotic drugs can prejudice the defendant by altering his demeanor. Id. at A brief from the American Psychiatric Association alleged that the amount of medication that Riggins was dosed with could have affected Riggins s thought process. Vickie L. Feeman, Note, Reassessing Forced Medication of Criminal Defendants in Light of Riggins v. Nevada, 35 B.C. L. REV. 681, 688 (1994). The Court also heard psychiatric testimony that indicated that under this medication, Riggins was also likely to suffer from confusion. Id. Because of these reasons, the Court concluded that it was possible that not only was Riggins s testimony impacted, but also that he was unable to effectively communicate with his attorney. Id. Produced by The Berkeley Electronic Press, 2006